Saturday, 22 January 2011

The European Court of Human Rights has just held that it is unlawful to send asylum seekers to Greece under what is widely known as the ‘Dublin II’ Regulation for their asylum claims to be processed there. The case is MSS v Greece and Belgium, no. 30696/09, 21 January 2010 (BAILII link to follow when available but available now on HUDOC or Word .doc file (large)).

In this landmark judgment the Court holds that the detention conditions to which the claimant was briefly exposed amounted to a breach of Article 3 and that the living circumstances of the claimant also amounted to a breach of Article 3. It then goes on to find that the Greek asylum process is so woeful that it amounts to a breach of Article 13 of the Convention. To top it all, the Court concludes that Belgium violated Articles 3 and 13 of the Convention by returning the claimant to Greece and thereby exposing him to these other breaches.
To cap it all, substantial damages are then awarded to the claimant against Belgium.

In respect of detention conditions, Strasbourg already found in an earlier case last summer that Greek detention facilities amounted to inhuman and degrading treatment. See AA v Greece, no. 12186/08, 22 July 2010. In this new case the Court goes on and finds as follows:

232. The Court sees no reason to depart from that conclusion on the basis of the Greek Government’s argument that the periods when the applicant was kept in detention were brief. It does not regard the duration of the two periods of detention imposed on the applicant – four days in June 2009 and a week in August 2009 – as being insignificant. In the present case the Court must take into account that the applicant, being an asylum seeker, was particularly vulnerable because of everything he had been through during his migration and the traumatic experiences he was likely to have endured previously.

233. On the contrary, in the light of the available information on the conditions at the holding centre near Athens airport, the Court considers that the conditions of detention experienced by the applicant were unacceptable. It considers that, taken together, the feeling of arbitrariness and the feeling of inferiority and anxiety often associated with it, as well as the profound effect such conditions of detention indubitably have on a person’s dignity, constitute degrading treatment contrary to Article 3 of the Convention. In addition, the applicant’s distress was accentuated by the vulnerability inherent in his situation as an asylum seeker.

In respect of living conditions in Greece the Court finds as follows:

263. In the light of the above and in view of the obligations incumbent on the Greek authorities under the European Reception Directive (see paragraph 84 above), the Court considers that the Greek authorities have not had due regard to the applicant’s vulnerability as an asylum seeker and must be held responsible, because of their inaction, for the situation in which he has found himself for several months, living in the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs. The Court considers that the applicant has been the victim of humiliating treatment showing a lack of respect for his dignity and that this situation has, without doubt, aroused in him feelings of fear, anguish or inferiority capable of inducing desperation. It considers that such living conditions, combined with the prolonged uncertainty in which he has remained and the total lack of any prospects of his situation improving, have attained the level of severity required to fall within the scope of Article 3 of the Convention.

This case is of absolutely enormous import. It prevents removals to Greece under the Dublin II process. It also means that any asylum seekers already removed by the UK to Greece are potentially eligible for substantial compensation from the British Government for having exposed them to significant breaches of their human rights there. See here for previous posts on third country removals to Greece and Italy.